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A recent article by Stephanie Strom, "A Revolutionary Widow's Estate Becomes a Preservation Battleground," New York Times (Nov. 17, 2009), describes a brewing fight over one of the most significant of the great Hudson River properties: Montgomery Place. Click here for a link to the post, and here and here for additional background about the property. Montgomery Place, which is located in Annandale-on-Hudson, New York, is an incredible 1802 house built by Janet Livingston Montgomery, widow of Revolutionary War hero General Richard Montgomery. Montgomery descendants maintained the property until the mid-1980s. In 1984, the family sold the house and its surrounding 434 acres to Historic Hudson Valley, a nonprofit group founded by John D. Rockefeller, Jr., with the hope that it would be preserved as a museum. The group's current leadership, however, contends Historic Hudson Valley can no longer afford to maintain Montgomery Place, citing $500,000 in annual operating costs and cost-prohibitive renovations. As a result, it may have to sell all or part of Montgomery Place. In response, former board members, including former Wall Street titan, Richard Jenrette, have stepped forward with alternatives, including transferring the property to the Classical American Homes Preservation Trust. So far, Historic Hudson Valley has rejected this offer, but local leaders and neighbors have vowed to press for alternatives. They consider Montgomery Place to be part of the public trust.

Okay - here's my rant for the day. Why, oh why, couldn't the US Supreme Court have overruled Agins v. Tiburon in Lingle v. Chevron? This case trips up my students every semester. You all will remember Agins as the 1980 downzoning case in Tiburon, California in which the Court fashioned a takings test for facial challenges whereby an the ordinance was unconstitutional if it either did not substantially advance a legitimate state interest or it denied an owner economically viable use of the land. In Lingle the court said that the substantially advances test was essentially a due process analysis and therefore was not appropriate to analyze takings cases. Rather, the court reaffirmed the Penn Central case as the appropriate test for garden-variety regulatory takings (although I don't think the Court used the term "garden variety" in its analysis). However, Agins seems like a lovely, simple test and so every semester a clinic student latches onto it when trying to explain takings doctrine in a client memo. As someone did today.

Anybody else have issues with student confusion over this case? Any Supreme Court scholars out there who know if there's some obscure doctrine that would allow the court to overrule this case from the bench this term? We could form a picket line outside the court. I can only imagine the confused Supreme Court reporters trying to explain our outrage to a mystified public.

It's the Friday before Thanksgiving, the last day of classes (for me), it's 66 degrees and sunny here in Athens, and Chad is at the amusement park convention. I have to find some way to entertain myself...

Wow! There's something to be said for telling the reader where you stand. More:

Unfortunately, he turned his gifts to destructive ends, and it is no coincidence that he willingly served both Stalin and Vichy. Like Pol Pot, he wanted to start from Year Zero: before me, nothing; after me, everything. By their very presence, the raw-concrete-clad rectangular towers that obsessed him canceled out centuries of architecture. Hardly any town or city in Britain (to take just one nation) has not had its composition wrecked by architects and planners inspired by his ideas.

Dalrymple reviews several recent book about Le Corbusier, an exhibition in London and Rotterdam, and some of Le Corbusier's own writings, including The Radiant City. It's an interesting read.

Le Corbusier was an architect whose vision had broad implications for urban land use planning. As Dalrymple says, he had a plan for Paris that "if carried out, the plan would have changed, dominated, and, in my view, destroyed the appearance of the entire city." His "Radiant City" was one of the major utopian approaches to planning from the first half of the 20th Century, along with Ebenezer Howard's Garden City, and the City Beautiful movement associated with Daniel Burnham and the World's Fair approach. Will Cook, who has posted on Jane Jacobs' Death and Life of Great American Cities, must surely have come across one of my favorite Jacobs lines, her characterization of all of these utopian ideals together as the "Radiant Garden City Beautiful."

All of these utopian ideas for city design and land use were well-intentioned but would probably not incorporate the same priorities and preferences that we might have today. Does that cast any doubt on the viability of contemporary comprehensive ideas and designs for land use planning?

Public access rights to privately-owned beachfront property has been a contentious land use issue for decades. I mentioned that on Election Day, on my ballot was not just the mayoral election (which always has some land use issues in the Unzoned City), but also a number of Propositions for amendments to the Texas state constitution. Several of these propositions (all of which passed) involve property rights or land use issues, and one in particular deals with access to beach lands.

(a) In this section, "public beach" means a state-owned beach bordering on the seaward shore of the Gulf of Mexico, extending from mean low tide to the landward boundary of state-owned submerged land, and any larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired a right of use or easement to or over the area by prescription or dedication or has established and retained a right by virtue of continuous right in the public under Texas common law.

(b) The public, individually and collectively, has an unrestricted right to use and a right of ingress to and egress from a public beach. The right granted by this subsection is dedicated as a permanent easement in favor of the public.

(c) The legislature may enact laws to protect the right of the public to access and use a public beach and to protect the public beach easement from interference and encroachments.

(d) This section does not create a private right of enforcement.

This amendment will not create any new substantive state law; it primarily serves to constitutionalize provisions of the Texas Open Beaches Act. The state's General Land Office interprets the TOBA to mean that the public has a "rolling easement" over the dry-sand beach up to the vegetation line.

This interpretation of the TOBA--and by implication, the new state constitutional amendment--is being litigated by Carol Severance (represented by the Pacific Legal Foundation), who owns beachfront property on Galveston Island where the vegetation line was altered by Hurricane Rita in 2005 (more damage was done last year by Hurricane Ike!). The case, Severance v. Patterson, No. 0-0387, is being heard in oral argument today in the Supreme Court of Texas, on certified questions from the U.S. Court of Appeals for the Fifth Circuit.

In the Fifth Circuit opinion authored by Judge Edith Jones, the court held that it was a question for the state courts whether this "rolling easement" comes from the statute or from common law easements by dedication, prescription, or customary rights. Read a story about the Fifth Circuit's decision in the Texas Lawyer article Battle for the Beach, including my $0.02. It was an interesting case with the court holding that Severance stated a *Fourth Amendment* claim for unreasonable seizure of her land, and with a strong dissent from Judge Wiener.

The result of the case will have an impact on how the state may assert public rights to beach access and on the private rights of landowners along the vast Texas Gulf Coast, and perhaps in other states as well. Copies of the merits and amici briefs are here. I will be watching the oral argument on St. Mary's Law School's excellent website with live and archived audio and video webcasts of the Texas Supreme Court sessions.

In particular, the topic seemed to be how developers can participate in the planning game – or, at the very least, work for the government during the downturn. For example, one panel of dealmaking experts focused exclusively on how to become a development advisor to local governments until the market turns again. "Developers understand the value of time and money," said Frank Baltz, of Maryland-based Edgemoor Real Estate Services. Governments don't understand the value of either, he added, but savvy government folks do understand that they can build necessary public projects at a low cost during an economic downturn.

I'm not entirely convinced that this description indicates any turn towards planning as opposed to a strategy for dealing with the slowdown. But at any rate the summary shows that many developers are quite sensitive to the public side of land use planning right now.

Meanwhile, ULI and PriceWaterhouseCoppers have released their Emerging Trends in Real Estate 2010 report, which looks like it has a lot of useful information and analysis. According to F. Kaid Benfield's analysis of the ULI report at the Huffington Post, the overall market may be bad, but it is much better for smart growth than it is for sprawl:

it is clear that the authors, who surveyed over 900 industry experts - investors, developers, property companies, lenders, brokers, and consultants - believe that the prospects for investment are much stronger for smart growth than they are for sprawl.

Takings jurisprudence is engaged in a constant paradox. It is conventionally portrayed as chaotic and “muddy,” and yet attempts by the judiciary to create some sense of order in it by delineating this field into distinctive categories that apply to each a different set of rules are often criticized as analytically incoherent or normatively indefensible.

This Essay offers an innovative approach to the taxonomic enterprise in takings law, by examining what is probably its starkest and most entrenched division: that between taking and taxing. American courts have been nearly unanimous in refusing to scrutinize the power to tax, viewing this form of government action as falling outside the scope of the Takings Clause. Critics have argued that the presence of government coercion, loss of private value, and potential imbalances in burden sharing mandate that the two instances be conceptually synchronized and subject to similar doctrinal tests.

The main thesis of the Essay is that this dichotomy, and other types of legal line-drawing in property, should be assessed not on the basis of a “pointblank” analysis of allegedly-comparable specific instances, but rather on a broader view of the foundational principles of American property law and of the way in which takings taxonomies mesh with the broader social and jurisprudential understanding of what “property” is.

Identifying American property law as conforming to two fundamental principles-formalism of rights and strong market propensity-but at the same time as devoid of a constitutional undertaking to protect privately-held value against potential losses as a self-standing “strand” in the property bundle, the Essay explains why prevailing forms of taxation do seem to be disparate from other forms of governmental interventions with private property. Focusing attention on property taxation, the Essay shows why taxation is considered a “lesser evil” type of government coercion, how the taking/taxing dichotomy better addresses the public-private interplay in property law, and why taxation is often viewed as actually empowering property rights and private control of assets.

We argue that the mortgage meltdown can be considered a “normal accident”. Our analysis suggests that the mortgage industry’s complex and tightly coupled technology made it vulnerable to failure, irrespective of the level of greed and fraudulent behavior exhibited by mortgage industry executives. Our normal accident analysis also suggests that insufficient regulatory oversight contributed to the debacle. But our analysis suggests that simply increasing the amount of regulation over the mortgage industry is unlikely to reduce its susceptibility to failure. Indeed, if inappropriately designed, increasing the amount of regulation could increase the likelihood of future failure.

Acclaimed preservationist, author, and professor Anthony Wood paid a visit this week to Charleston, South Carolina, where he serves as Chairman of the Drayton Hall Site Council. Click here for a link to Drayton Hall and to learn more about the innovative work taking place there. Thanks to Drayton Hall's incredible leadershipand staff, including Carter Hudgins (Interim Director of Preservation) and Craig Tuminaro (Director of Museum Interpretation), visitors--including my historic preservation law students--encounter everything from the latest in architectural history and archaeology to conservation easements, historic agriculture, landscapes, and horticulture.

In an earlier post, I mentioned Mr. Wood's book, Preserving New York, a thoroughly researched and fascinating account of the evolution of the preservation movement in New York City. The book is purposely city-specific, but the lessons learned in the Big Apple transcend its boundaries. It will serve as one of my supplemental texts in historic preservation law in Charleston next semester.

Over dinner at F.I.G. last night, a great culinary stop in Charleston for you Slow Food types, Mr. Wood told our group, among other things, about the work of the New York Preservation Archive Project and a recent amicus brief filed by the Municipal Arts Society in the New York Supreme Court. Stay tuned for more information about these historic preservation efforts in future posts.

Joanne Martin recently published "The Nature of the Property Curriculum in ABA-Approved Schools and its Place in Real Estate Practice" in the Real Property, Trust, and Estate Law Journal. The author surveys law professors and practicing attorneys, and provides an empirical analysis of law schools' approach to the first-year property course and the course's relevance to attorneys' practice experiences. The article as a whole is a fascinating birds-eye view of the state of property law in legal education.

Some interesting excerpts:

"...the Property course as taught in the top 20 law schools is most likely to be a four-credit-hour course, and the Property course as taught in 4th tier schools is most likely to be a six-credit-hour course." (392)

"The most notable decreases in frequency of coverage as the number of course hours declines involve ... real estate conveyancing, real estate financing, and real estate recording." (393)

And my read from a few of the many tables of data: law school professors are much more likely to include some coverage of land use regulation in the first year property course than real estate transactions.

How well law schools prepare students for practice is, of course, the subject of much debate inside and outside of the academy. Certainly many practicing lawyers would criticize the lack of "readiness" of new lawyers to perform legal tasks like preparing a real estate contract, drafting a deed, or understanding real estate finance. The article confirms this view in its survey of practicing lawyers. For me, as a law professor, Including land use material in the first year property course allows me to apply much of the theory of the property course to concrete issues. It is more likely, however, that my students will prepare a real estate contract than be engaged in a historic preservation dispute in their practice. I have the luxury of teaching a five or six credit property course so I do not have to make many hard decisions about what topics to cut. From the author's surveys, it seems that the real estate transactions material is the first to go for many courses.

From time to time I'll be posting guest blogs by Land Use Clinic students related to their clinic projects. Today's blog is by Emily Stratton, who is a second year law student here at UGA.

The New Urbanist movement is now fully entrenched in the American landscape. There are communities all over the country dedicated to reincarnating the feel of a traditional neighborhood with mixed-used development, transit-served town centers and pedestrian-oriented infrastructure. However, New Urbanist developments typically require, well, some urbanism. This poses a problem in communities that lie on the edge of metropolitan boundaries, in rural towns where farmland still prevails over parking lots, and greenspace is not a luxury but a necessity. These rural lands are most at risk for the type of suburban sprawl that New Urbanism was meant to combat, but they don’t have the density required for a large, mixed-use development. A new term has been bandied about for the past few years that may be a viable alternative for these rural communities: New Ruralism, a term I use with hesitation. The basic idea behind the movement is to combine sustainable agricultural with the principles of smart growth, forging an integral connection with the land. It’s about incorporating farmland into urban planning, preserving rural life, and concentrating growth in designated areas. You should be able to look out the north window of your house and see a vibrant town center, while out the south window are crops that don’t require chemicals and extensive watering to survive. Homes are within walking-distance of retail shops and offices, but the paths connecting the two cut through natural landscapes and fields rather than manicured parks or neighborhoods. I use the term “New Ruralism” with trepidation because it has developed starkly different meanings. Several communities have taken possession of the label without embracing its underlying humbleness; the movement is supposed to be about rebuilding a relationship with the earth. These communities instead cash in on the current “green” trend by emphasizing an eco-friendliness that includes luxury homes on secluded lots that are connected with roads meant to be driven, not walked. There is no attempt to create a direct link between people and their food sources, whether through organic community gardens or personal vegetable plots, and modern amenities reign supreme over sustainable living. The land becomes an accessory, rather than a valued asset to be protected. Call it what you, there is something to be said for bringing back traditions that built this country: embracing the land as a friend to be treasured, the source of life for us all, while encouraging healthy growth and development. And, rather than being a flash-in-the-pan idea, with Andres Duany’s recent seal of approval and promulgation of Agricultural Urbanism, the movement looks like it’s here to stay.

More student posts to follow...along, apparently, with news from the amusement park convention in Las Vegas. My fellow editors have such interesting hobbies!

UPDATE: Per Matt Festa's comment, there has indeed been some controversy over New Urbanist development in Athens' greenbelt. A development known as Oak Grove was originally approved as a mixed-use residential/commercial development. However, as with many New Urbanist projects the retail has been slow in coming. Also, many Athens residents and leaders were and are critical of this development as being uncontinguous with other residential development and "too far out" in the greenbelt. The latest issue is over a request to amend the plan for the development to include strip-style commercial development, rather than the mixed-use style originally planned.

When I'm not researching, writing, and teaching about land use and development, I have a bit of a guilty research pleasure: amusement park law.

It all started early on in my lawprof career when one of my mentors recommended selecting at least one area of research simply because you enjoy the topic in a non-legal context, too. For the Emersons, that's certainly theme parks and related amusements (waterparks, museums, zoos...you name it).

So, I took that wise professor up on his advice and now write about the amusement industry, covering both legal and non-legal topics.

The reason I mention this (and the reason why my blogging will be pretty light this week) is because I just arrived in Las Vegas for the big annual amusement industry conference: the IAAPA Attractions Expo. I'll be participating in several sessions on all types of legal and regulatory issues facing the industry.

Hopefully, I'll also be able to meet up with co-blogger Ngai Pindell and check out some of the latest land use happenings in Vegas later this week.

In the meantime--in keeping with the dual theme of land use and theme parks--check out here and here for two recent land use disputes involving amusement industry participants.

Management at the park has confirmed that this ride---the Scandia Screamer was selected as an attraction at the park because the motor noise is so very low. Additionally, in order to compete in a competitive market, they needed to maintain an attraction that would draw thrill-seekers.

Though the Screamer is in fact one of the quietest rides considering the motor, sound is only one of the major issues that neighboring residents have with the ride. One resident, John Eams, claims that the amusement attraction violates his privacy, as riders can see directly into his back yard when catapulted to the ride's maximum height. Other neighbors have complained that seeing the ride lit up nightly is an eyesore. Thus, residents are considering filing a class-action lawsuit against the amusement park.

Georgia State University has announced a symposium in honor of Julian C. Juergensmeyer's 45th year of teaching, to be held in Atlanta March 25-26, 2010. Entitled "A 2020 View of Urban Infrastructure," the draft agenda offers both national and international perspectives on topics such as "Infrastructure and Property Rights" and "Transportation Infrastructure and Control of Sprawl." Scholars and practitioners presenting include Robert Freilich, Patricia Salkin, and Jerry Weitz. For more information contact GSU's Center for Comparative Study of Metropolitan Growth at Infrastructure2020@gsu.edu

Despite reports that homeowners are increasingly “walking away” from their mortgages, most homeowners continue to make their payments even when they are significantly underwater. This article suggests that most homeowners choose not to strategically default as a result of two emotional forces: 1) the desire to avoid the shame and guilt of foreclosure; and 2) exaggerated anxiety over foreclosure’s perceived consequences. Moreover, these emotional constraints are actively cultivated by the government and other social control agents in order to encourage homeowners to follow social and moral norms related to the honoring of financial obligations - and to ignore market and legal norms under which strategic default might be both viable and the wisest financial decision. Norms governing homeowner behavior stand in sharp contrast to norms governing lenders, who seek to maximize profits or minimize losses irrespective of concerns of morality or social responsibility. This norm asymmetry leads to distributional inequalities in which individual homeowners shoulder a disproportionate burden from the housing collapse.

What do a mountain, the Enola Gay's hangar, a Los Angeles hotel, a temple, and a stadium have in common? They're all listed on this year's 11 Most Endangered Historic Places by the National Trust for Historic Preservation. Click here for this year's list. One of the most interesting sites is Mount Taylor in Grants, New Mexico, about 50 miles from Acoma Sky City, an over 350-foot tall mesa that has been home to the Acoma people for over 1,000 years--itself a National Trust Historic Site. Renewed interest in mining uranium ore has stirred heated debate about Mount Taylor's future. The 1872 Mining Law makes mining there possible, without regard to site's cultural or natural resources. Recent designation of the site as a Traditional Cultural Property by New Mexico may, however, provide some protection, to the extent that it protects not only the mountain and its slopes, but also nearby mesas and valleys. Native American tribes in the area continue to press for control over development decisions affecting this land. Whether they succeed in this effort will depend on how lawmakers balance their request against the rights of Mount Taylor's legal owners to use and enjoy their land.

The 2009 National Preservation Conference took place several weeks ago, but for historic preservationists who could not attend in person, the National Trust for Historic Preservation has made attendance possible virtually. Click here for selected webcasts and seminar materials. Other archives are available online, too, at the same link. Next year's conference will take place in Austin, Texas. I'll be reviewing some of the materials from this year's conference in future posts.

For you football fans out there, here is a Sunday post about the recurring issue in many cities about building a new sports stadium, either for the local team or to attract a new team to town. There are a lot of land use issues bound up in these controversies. Cities like to have sports teams, not just for the city's sports fans, but also very much for the broader but nebulous civic sense that the city is a "major-league" town or that it has "arrived." Claims are made about the economic development that must surely result from the construction of fancy new digs for the team. Transit and traffic issues are involved. Location: should the stadium be in the suburbs, or downtown? What will be the impact on neighborhoods? On property values and taxes? On the environment? Of course, the gorilla in the room is the question of who pays--the team or the taxpayer? People don't want to lose their team, but neither do they want to be held "hostage" by the wealthy owners' demands. Then there is the problem of land assembly. How much eminent domain will be needed?

My sense is that over the last few years the public has become much less receptive to the notion of public financing for sports stadium (stadia?). Yet the issue comes back repeatedly when a team makes noises about "needing" an upgraded venue.

The nation's second-largest city (and media market) remains without a professional football franchise, but that isn't stopping Los Angeles from trying to lure one back. From a recent article about LA's latest new-stadium proposal:

LOS ANGELES — Nearly 15 years after the Los Angeles area’s two professional football teams left for other cities, Gov. Arnold Schwarzenegger has signed a bill to clear the way for a new stadium seen as pivotal to drawing a team to the region. . . .

But the latest effort, to build a 75,000-seat, $800 million “green” stadium in City of Industry, a warehouse and shopping district 15 miles east of downtown, is considered one of the more viable to come along in a long time.

No taxpayer money would be used to finance it, a condition that has helped squelch other plans; the developer, the Majestic Realty Company, said it would seek private investors.

Here is a website about the proposal: losangelesfootballstadium.com. Lots of design info and pictures. I think it's particularly interesting in that I don't recall any previous proposals for a "green" stadium. It's good that the proposal purports to eschew direct public financing; the state is mired in fiscal crisis, and LA is still paying for Jacko's memorial at the Staples Center. But what will the indirect public costs be? Will they be outweighed by the always-promised economic development?

Relatedly, in the other kind of football, soccer ("metric football"?), Houston wants to build a soccer-specific stadium for the Major League Soccer franchise Houston Dynamo. The stadium is proposed for an area on the edge of downtown and on a proposed light rail line. There was a little bit of debate over the proposed use of tax increment financing for certain aspects of the project. [We call Houston the Unzoned City but there are some significant uses of Tax Increment Reinvestment Zones or "TIRZ"]. As far as the public "sales pitch" for the soccer stadium, Houston already has the team, but it would like to play host to potential U.S. World Cup games, thereby proving that the city has "arrived."

There are also the peripheral legal issues around stadiums, such as regulating the "pedicabs" that operate to bring people to and from the game from distant parking. (Here's what they look like.) UPDATE: here's a USA Today article on the growing use of and legal issues about pedicabs.

Brian Yates has an article on the subject called "Whether Building a New Sports Arena will Revitalize Downtown and Make the Team a Winner," Vol. 17 U. Miami Business Law Review p. 269 (2009). So if you're headed out to the stadium today, enjoy the game, and think about all of the land use issues involved! Thanks to Ryan Palmquist, Paul Farnum, Alan Saweris, and William Powell for links.

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Editors

Craig Anthony Arnold

Boehl Chair in Property and Land Use Professor of Law
Affiliated Professor of Urban Planning
Ph.D. Faculty in Urban and Public Affairs
Chair of the Center for Land Use and Environmental Responsibility,
University of Louisville